Wednesday, August 22, 2012

Air
quality has improved substantially in the United States in the 40 years of EPA’s
Clean Air Act regulation, but more needs to be done, according to the
agency’s science advisers, to protect public health and the environment
from the effects of air pollution. Thus, the agency continues to promulgate
regulations addressing air pollution using authority given it by Congress more
than 20 years ago. In the 112th Congress, Members from both parties have
raised questions about the costeffectiveness of some of these regulations
and/or whether the agency has exceeded its regulatory authority in promulgating
them. Others in Congress have supported EPA, noting that the Clean Air
Act, often affirmed in court decisions, has authorized or required the agency’s
actions.

EPA’s regulatory actions on greenhouse gas (GHG) emissions have been one focus
of congressional interest. Although the Obama Administration has
consistently said that it would prefer that Congress pass new legislation
to address climate change, such legislation now appears unlikely. Instead,
over the last three years, EPA has developed GHG regulations using its existing Clean
Air Act authority. EPA finalized GHG emission standards for cars and light
trucks on April 1, 2010, and for larger trucks, August 9, 2011. The
implementation of these standards, in turn, triggered permitting and Best
Available Control Technology requirements for new major stationary sources
of GHGs.

It is the triggering of standards for stationary sources (power plants,
manufacturing facilities, etc.) that has raised the most concern in
Congress: legislation has been considered in both the House and Senate
aimed at preventing EPA from implementing these requirements. In the first
session of this Congress, the House passed H.R. 1, which contained
provisions prohibiting the use of appropriated funds to implement various
EPA GHG regulatory activities, and H.R. 910, a bill that would repeal EPA’s
endangerment finding, redefine “air pollutants” to exclude greenhouse gases, and
prohibit EPA from promulgating any regulation to address climate change. In the
Senate, H.R. 1 was defeated, and an amendment identical to H.R. 910
(S.Amdt. 183) failed on a vote of 50-50.

EPA has taken action on a number of other air pollutant regulations, generally
in response to court actions remanding previous rules. Remanded rules have
included the Clean Air Interstate Rule (CAIR) and the Clean Air Mercury
Rule—rules designed to control the long-range transport of sulfur dioxide,
nitrogen oxides, and mercury from power plants through cap-and-trade programs. Other
remanded rules included hazardous air pollutant (“MACT”) standards for boilers
and cement kilns. EPA is addressing the court remands through new
regulations, that have now been promulgated. Many in Congress view the new
regulations as overly stringent. The House has passed three bills (H.R.
2250, H.R. 2401, and H.R. 2681) to delay or revoke the new standards and
change the statutory requirements for their replacements.

In addition to the power plant and MACT rules, EPA is also reviewing ambient
air quality standards (NAAQS) for ozone, particulates, and other
widespread air pollutants. These standards serve as EPA’s definition of
clean air, and drive a range of regulatory controls. The revised NAAQS
also face opposition in Congress. As passed by the House, H.R. 2401 would amend
the Clean Air Act to require EPA to consider feasibility and cost in
setting NAAQS, and H.R. 1633 would prevent EPA from setting standards for
ambient concentrations of rural dust.

Date of Report: August 7, 2012
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James
E. McCarthySpecialist in Environmental Policy
Claudia CopelandSpecialist in Resources and Environmental Policy

Since
Barack Obama was sworn in as President in 2009, the Environmental Protection
Agency (EPA) has proposed and promulgated numerous regulations
implementing the pollution control statutes enacted by Congress. Critics
have reacted strongly. Many, both within Congress and outside of it, have
accused the agency of reaching beyond the authority given it by Congress and ignoring
or underestimating the costs and economic impacts of proposed and promulgated
rules. The House has conducted vigorous oversight of the agency in the 112th
Congress, and has approved several bills that would overturn specific
regulations or limit the agency’s authority. Particular attention is being
paid to the Clean Air Act, under which EPA has moved forward with the
first federal controls on emissions of greenhouse gases and also addressed
emissions of conventional pollutants from a number of industries.

Environmental groups and others disagree that the agency has overreached, and
EPA states that critics’ focus on the cost of controls obscures the
benefits of new regulations, which, it estimates, far exceed the costs;
and it maintains that pollution control is an important source of economic activity,
exports, and American jobs. Further, the agency and its supporters say that EPA
is carrying out the mandates detailed by Congress in the federal
environmental statutes.

This report provides background information on recent EPA regulatory activity
to help address these issues. It examines 41 major or controversial
regulatory actions taken by or under development at EPA since January
2009, providing details on the regulatory action itself, presenting an
estimated timeline for completion of the rule (including identification of
related court or statutory deadlines), and, in general, providing EPA’s
estimates of costs and benefits, where available. The report includes
tables that show which rules have been finalized and which remain under
development.

The report also discusses factors that affect the timeframe in which
regulations take effect, including statutory and judicial deadlines,
public comment periods, judicial review, and permitting procedures, the
net results of which are that existing facilities are likely to have several years
before being required to comply with most of the regulatory actions under
discussion. Unable to account for such factors, which will vary from case
to case, timelines that show dates for proposal and promulgation of EPA
standards effectively underestimate the complexities of the regulatory
process and overstate the near-term impact of many of the regulatory actions.

Date of Report: August 8, 2012
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Thursday, August 16, 2012

Beginning January 1, 2012, most carbon dioxide (CO2) emissions
from commercial flights to, from, and within the European Union (EU) are
covered by the EU Emission Trading Scheme (EU ETS). Flights are covered
regardless of whether the airline or operator is based in the EU region. The
EU ETS caps aviation emissions of CO2 in 2012 at 97% of the average in
2004-2006 and at 95% in each year 2013-2020. Each April, beginning 2013,
covered aircraft operators must turn in emission “allowances” (permits)
equal to the previous year’s covered emissions. Airline operators receive
free allowances for 82%-85% of their 2010 emissions. Airlines that have more
allowances than they need may sell them or save them for future use.
Airlines that need more allowances may buy them from EU auctions, other
carriers, other emission sources in the EU ETS, brokers, or international
emission trading mechanisms. A small reserve of free allowances is available
for new or rapidly expanding airlines.

The EU law covering international aviation emissions is a significant move in a
two-decade process concerning whether and how aviation emissions of CO2 may
be abated. Even among those who agree on the benefits of reducing
greenhouse gas (GHG) emissions, how to share reductions across nations and
sectors remains controversial internationally and within countries. Emissions
from international air transport pose a particular challenge.

The 1997 Kyoto Protocol (to which the United States is not a Party) specified
that Parties should pursue limitation or reduction of GHG emissions from
aviation fuels, working through the International Civil Aviation
Organization (ICAO), an agency of the United Nations. In 2008, the EU
cited a lack of “substantive progress” in ICAO and legislated to include
aviation in its existing EU ETS by 2012. ICAO members have agreed to a
variety of voluntary actions and goals. In October 2011, faced with
impending inclusion of aviation emissions in the EU ETS, the ICAO Council
agreed to accelerate its work, including continuing to explore market-based measures,
CO2 standards for new aircraft, and other options. In mid-2012, ICAO’s
environment committee approved guidelines for how to measure CO2 emissions
from new aircraft as a step toward possible agreement among countries to
regulate those emissions.

EU officials have stated their preference for agreeing on global, binding
measures in ICAO. One official stated that the EU would agree to suspend
inclusion of aviation in the ETS only if a new global ICAO scheme met
three conditions: it must deliver more emissions reductions than the EU ETS
on its own; it must have targets and measures; and any action must be
non-discriminatory and apply to all airlines. Alternatively, EU law allows
exemptions for incoming flights from countries that have adopted “equivalent
measures” to reduce emissions. Some countries are likely negotiating with
the EU for an equivalent measures exemption for their airlines.

Air carriers from the United States and other countries vociferously object to
including international aviation in the EU ETS. The U.S. government
continues to press the EU to exclude foreign carriers. In October 2011,
the House passed H.R. 2594, the European Union Emissions Trading Scheme
Prohibition Act of 2011, prohibiting U.S. aircraft operators from participating
in the EU ETS. It also would direct the Administration to negotiate and
take other actions to ensure that U.S. civil aircraft operators are not
penalized by unilateral EU regulation of GHG emissions. The Senate
Commerce Committee approved S. 1956 on July 31, 2012, a similar bill with more flexibility,
in parallel with a U.S.-hosted meeting with other countries opposed to the
scheme. In addition, House and Senate conferees on reauthorization of the
Federal Aviation Administration (FAA) agreed in January 2012 to a sense of
the Congress resolution opposing the EU action. .

Date of Report: August 2, 2012
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Thermoelectric
generating plants and manufacturing facilities withdraw large volumes of water for
production and, especially, to absorb heat from their industrial processes.
Water withdrawals by power producers and manufacturers represent more than
one-half of water withdrawn daily for various uses in the United States.
Although water withdrawal is a necessity for these facilities, it also
presents special problems for aquatic resources. In particular, the process of
drawing surface water into the plant through cooling water intake
structures (CWIS) can simultaneously pull in fish, shellfish, and tiny
organisms, injuring or killing them. Congress enacted Section 316(b) of the
Clean Water Act (CWA) specifically to address CWIS.

Regulatory efforts by the Environmental Protection Agency (EPA) to implement
Section 316(b) have a long and complicated history over 35 years,
including legal challenges at every step by industry groups and
environmental advocates. Currently most new facilities are regulated under rules
issued in 2001, while rules for existing facilities were challenged and
remanded to EPA for revisions. In response to the remands, in March 2011
EPA proposed national requirements affecting approximately 1,150 existing
electric powerplants and manufacturing facilities. Even before release,
the proposed regulations were highly controversial among stakeholders and some Members
of Congress. The issue for Congress has been whether a stringent and costly environmental
mandate could jeopardize reliability of electricity supply in the United
States. Many in industry feared, while environmental groups hoped, that
EPA would require installation of technology called closed-cycle cooling
that most effectively minimizes the adverse environmental impacts of CWIS,
but also is the most costly technology option.

The EPA proposal declined to mandate closed-cycle cooling universally and
instead favors a less costly, more flexible regulatory option. EPA’s
recommended approach would essentially codify current CWIS permitting
procedures for existing facilities, which are based on site-specific determinations
and have been in place administratively for some time because of legal
challenges to previous rules. EPA acknowledges that closed-cycle systems
reduce the adverse effects of CWIS to a greater extent than other
technologies, but in the proposed rule it rejected closed-cycle cooling as
a uniform requirement at existing facilities. The agency based that conclusion
on four factors: additional energy needed by electricity and manufacturing
facilities to operate cooling equipment and adverse consequences to
reliability of energy delivery (i.e., energy penalty), additional air
pollutants that would be emitted because fossil-fueled facilities would need to
burn more fuel as compensation for the energy penalty, land availability
concerns in some locations, and limited remaining useful life of some
facilities such that retrofit costs would not be justified.

Not surprisingly, stakeholder groups viewed the proposal differently.
Environmental groups endorsed the parts of the rule to establish
nationally uniform requirements, but criticized those allowing for
site-specific determinations. Industry groups urged EPA to provide greater
flexibility that would be more cost-effective. State permitting
authorities were divided on modifying the rule to be more flexible. In
June 2012, EPA said it is considering alternatives that reflect some recommendations
of industry and utility groups, and in July, the agency said it will delay
issuance of a final rule for 13 months—until June 27, 2013.

Date of Report: July 31, 2012
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The Clean Water Act prohibits the discharge of pollutants from any “point
source” to waters of the United States unless authorized under a permit
that is issued by EPA or a qualified state, and the act expressly defines
CAFOs as point sources. Permits limiting the type and quantity of pollutants
that can be discharged are derived from effluent limitation guidelines
promulgated by EPA. The 2003 rule, updating rules that had been in place
since the 1970s, revised the way in which discharges of manure,
wastewater, and other process wastes from CAFOs are regulated, and it
modified both the permitting requirements and applicable effluent limitation
guidelines. It contained important first-time requirements: all CAFOs must
apply for a discharge permit, and all CAFOs that apply such waste on land
must develop and implement a nutrient management plan.

EPA’s 2008 revised regulation addressed those parts of the 2003 rule that were
affected by the federal court’s ruling: (1) it eliminated the “duty to
apply” requirement that all CAFOs must either apply for discharge permits
or demonstrate that they have no potential to discharge, which was
challenged by industry plaintiffs; (2) it added procedures regarding review of
and public access to nutrient management plans, challenged by
environmental groups; and (3) it modified aspects of the effluent
limitation guidelines, also challenged by environmental groups. The final rule
also modified a provision of the 2003 rule that the court upheld, clarifying
the treatment of a regulatory exemption for agricultural stormwater
discharges. CAFOs were to apply for permits and develop nutrient
management plans by February 27, 2009. After that date, sources had three years
to actually get permit coverage.

EPA’s efforts to revise the 2003 rule were controversial, particularly
regarding the “duty to apply” for a permit and agricultural stormwater
exemption provisions. Environmental groups strongly criticized EPA’s
actions, arguing that the Waterkeeper Alliance court had left in place
several means for the agency to accomplish much of its original permitting
approach, but instead EPA chose not to do so. State permitting authorities
also had a number of criticisms, focusing on key parts that they argued
would greatly increase the administrative and resource burden on state regulators.
Farm industry groups were generally supportive of the 2008 rule. Nevertheless,
some of them brought a legal challenge. In March 2011, a federal court
agreed with the industry petitioners and vacated a portion of the 2008
rule concerning the “duty to apply” requirement. Congress has shown some
interest in CAFO issues in the past, primarily through oversight hearings
in 1999 and 2001, before issuance of either the 2003 or 2008 rules.

Date of Report: July 30, 2012
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Thursday, August 9, 2012

Mountaintop
removal mining involves removing the top of a mountain in order to recover the coal
seams contained there. This practice occurs in six Appalachian states
(Kentucky, West Virginia, Virginia, Tennessee, Pennsylvania, and Ohio). It
creates an immense quantity of excess spoil (dirt and rock that previously
composed the mountaintop), which is typically placed in valley fills on
the sides of the former mountains, burying streams that flow through the
valleys. Mountaintop mining is regulated under several laws, including the
Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act
(SMCRA).

Critics say that, as a result of valley fills from mountaintop mining, stream
water quality and the aquatic and wildlife habitat that streams support
are destroyed by tons of rocks and dirt. The mining industry argues that
mountaintop mining is essential to conducting surface coal mining in the
Appalachian region and that it would not be economically feasible there if
operators were barred from using valleys for the disposal of mining
overburden. Critics have used litigation to challenge the practice. In a
number of cases discussed in this report, environmental groups have been
successful at the federal district court level in challenging issuance of
permits for mountaintop mining projects, but each has been later
overturned on appeal. Nonetheless, the criticisms also have prompted some
regulatory changes, also discussed here.

In June 2009, officials of the Environmental Protection Agency (EPA), the U.S.
Army Corps of Engineers (Corps), and the Department of the Interior signed
a Memorandum of Understanding outlining a series of administrative actions
under these laws to reduce the harmful environmental impacts of
mountaintop mining and surface coal mining in Appalachia. The plan includes a
series of near-term and longer-term actions that emphasize specific steps,
improved coordination, and greater transparency of decisions. The actions
are being implemented through regulatory proposals, guidance documents,
and review of applications for permits to authorize surface coal mining
operations in Appalachia. Viewed broadly, the Administration’s combined actions
on mountaintop mining displease both industry and environmental advocates.
The additional scrutiny of permits and more stringent requirements have
angered the coal industry and many of its supporters. Controversy also was
generated by EPA’s January 2011 veto of a CWA permit that had been issued
by the Corps for a surface coal mining project in West Virginia. At the same
time, while environmental groups support EPA’s steps to restrict the
practice, many favor tougher requirements or even total rejection of
mountaintop mining in Appalachia. Federal courts have recently rejected
several of the Administration’s actions, including overturning EPA’s veto of
the West Virginia mine permit, enhanced permit review procedures, and EPA
guidance on factors used in evaluating water quality impacts of
Appalachian surface mining permits.

This report provides background on regulatory requirements, controversies and
legal challenges to mountaintop mining, and recent Administration actions.
Congressional interest in these issues also is discussed, including
legislation in the 111th Congress seeking to restrict the practice of mountaintop
mining and other legislation intended to block the Obama Administration’s regulatory
actions. Attention to EPA’s veto of the West Virginia mining permit and other
federal agency actions has increased in the 112th Congress. Several bills
have been introduced to clarify or restrict EPA’s authority to veto CWA
permits issued by the Corps (H.R. 457/S. 272; H.R. 517; H.R. 960/S. 468;
and H.R. 2018, which the House passed in July 2011).

Date of Report: August 1, 2012
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The
Environmental Protection Agency (EPA) and states are implementing a federally
mandated program for controlling stormwater discharges from industrial
facilities and municipalities. Large cities and most industry sources are
subject to rules issued in 1990, and EPA issued permit rules to cover
smaller cities and other industrial sources and construction sites in 1999.
Because of the large number of affected sources and deadline changes that
led to confusion, numerous questions have arisen about this program.
Impacts and costs of the program’s requirements, especially on cities, are
a continuing concern.

The 109th Congress enacted omnibus energy legislation (P.L. 109-58, the Energy
Policy Act of 2005) that included a provision giving the oil and gas
industry regulatory relief from some stormwater control requirements. In
May 2008, a federal court vacated an EPA rule implementing this provision.
EPA intends to issue a revised rule that repeals the one that was vacated by
the court and codifies the statutory exemption in P.L. 109-58, but the
agency does not have a specific schedule for doing so. In the 111th Congress,
the House passed a bill that included a provision that would repeal the
exemption in P.L. 109-58 (H.R. 3534), but the Senate took no action.

Congress often looks to federal agencies to lead or test new policy approaches,
a fact reflected in legislation enacted in the 110th Congress. Section 438
of the Energy Independence and Security Act (P.L. 110-140, EISA) requires
federal agencies to implement strict stormwater runoff requirements for
development or redevelopment projects involving a federal facility in order to reduce
stormwater runoff and associated pollutant loadings. EPA has issued technical
guidance for federal agencies to use in meeting these requirements.

In 2009 the National Research Council issued a report calling for major changes
to strengthen EPA’s stormwater regulatory program, which it criticized as
being inconsistent nationally and failing to adequately control all
sources of stormwater discharge that contribute to waterbody impairment.
In response, EPA has begun efforts to expand regulations and strengthen the
current program with a revised rule that it expects to propose in mid-2013
and to finalize by December 2014. The new rule is expected to focus on
stormwater discharges from newly developed and redeveloped, or
post-construction, sites, such as subdivisions, roadways, industrial
facilities, and commercial buildings or shopping centers.

Date of Report: July 30, 2012
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Tuesday, August 7, 2012

The
United States supports international financial assistance for global climate
change initiatives in developing countries. Under the Obama
Administration, this assistance has been articulated primarily as the
Global Climate Change Initiative (GCCI), a platform within the President’s 2010 Policy
Directive on Global Development. The GCCI aims to integrate climate change considerations
into U.S. foreign assistance through a full range of bilateral, multilateral,
and private sector mechanisms to foster low-carbon growth, promote
sustainable and climate-resilient societies, and reduce emissions from
deforestation and land degradation. The GCCI is implemented through
programs at three “core” agencies—the Department of State, the Department
of the Treasury, and the U.S. Agency for International Development (USAID)—and is
funded through the Administration’s Executive Budget, Function 150 account, for
State, Foreign Operations, and Related Programs.

Congress is responsible for several activities in regard to the GCCI, including
(1) authorizing periodic appropriations for federal agency programs and
multilateral fund contributions, (2) enacting those appropriations, (3)
providing guidance to the agencies, and (4) overseeing U.S. interests in
the programs and the multilateral funds. Recent budget authority for the GCCI
was $323 million in FY2009, $939 million in FY2010, $819 million in
FY2011, and $773 million in FY2012, and has been enacted through
legislation including the Omnibus Appropriations Act, 2009 (H.R. 1105;
P.L. 111-8); the Consolidated Appropriations Act, 2010 (H.R. 3288; P.L. 111- 117);
the Supplemental Appropriations Act, 2010 (H.R. 4899; P.L. 111-212); the
Department of Defense and Full-Year Continuing Appropriations Act, 2011
(H.R. 1473; P.L. 112-10); and the Consolidated Appropriations Act, 2012
(H.R. 2055; P.L. 112-74). The Administration’s GCCI FY2013 budget request
is $770 million. Congressional committees of jurisdiction for the GCCI include
the U.S. House of Representatives Committees on Foreign Affairs (various subcommittees);
Financial Services, Subcommittee on International Monetary Policy and Trade; and
Appropriations, Subcommittee on State, Foreign Operations, and Related
Programs; and the U.S. Senate Committees on Foreign Relations,
Subcommittee on International Development and Foreign Assistance, Economic
Affairs, and International Environmental Protection; and Appropriations,
Subcommittee on State, Foreign Operations, and Related Programs.

As Congress considers potential authorizations and/or appropriations for
activities administered through the GCCI, it may have questions concerning
U.S. agency initiatives and current bilateral and multilateral programs
that address global climate change. Some potential concerns may include
cost, purpose, direction, efficiency, and effectiveness, as well as the GCCI’s
relationship to industry, investment, humanitarian efforts, national
security, and international leadership. This report serves as a brief
overview of the GCCI, its structure, intents, and funding history. For a more
detailed discussion of international financial assistance for climate change
activities, see CRS Report R41808, International Climate Change
Financing: Needs, Sources, and Delivery Methods, by Richard K.
Lattanzio and Jane A. Leggett.

Date of Report: July 27, 2012
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Thursday, August 2, 2012

The
animal sector of agriculture has undergone major changes in the last several
decades: organizational changes within the industry to enhance economic
efficiency have resulted in larger confined production facilities that
often are geographically concentrated. These changes, in turn, have given
rise to concerns over the management of animal wastes and potential impacts on environmental
quality.

Federal environmental law does not regulate all agricultural activities, but
certain large animal feeding operations (AFOs) where animals are housed
and raised in confinement are subject to regulation. The issue of
applicability of these laws to livestock and poultry operations— especially
the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA,
the Superfund law) and the Emergency Planning and Community Right-to-Know Act (EPCRA)—has
been controversial and has drawn congressional attention.

Both Superfund and EPCRA have reporting requirements that are triggered when
specified quantities of certain substances are released to the
environment. In addition, Superfund authorizes federal cleanup of releases
of hazardous substances, pollutants, or contaminants and imposes strict
liability for cleanup and injuries to natural resources from releases of
hazardous substances.

Superfund and EPCRA include citizen suit provisions that have been used to sue
poultry producers and swine operations for violations of those laws. In
two cases, environmental advocates claimed that AFO operators had failed
to report ammonia emissions, in violation of Superfund and EPCRA. In both
cases, federal courts supported broad interpretation of key terms defining
applicability of the laws’ reporting requirements. Three other cases not
dealing with reporting violations also have attracted attention, in part
because of questions of whether animal wastes contain hazardous substances
that can create cleanup and natural resource damage liability under
Superfund. Two of these cases were settled; the third, brought by the Oklahoma
Attorney General against poultry operations in Arkansas, is pending.

In December 2008, EPA issued a rule to exempt animal waste emissions to the air
from most CERCLA and EPCRA reporting requirements. Legal challenges to the
rule followed. In October 2010, a federal court approved the government’s
request to remand the rule to EPA for reconsideration and possible
modification. EPA anticipates that it will propose a new or revised rule
in 2012.

The lawsuits testing the applicability of CERCLA and EPCRA to poultry and
livestock operations and potential changes by EPA to the 2008 exemption
rule have led to congressional interest in these issues. In the 112th Congress,
legislation has been introduced that would amend CERCLA to clarify that
manure is not a hazardous substance, pollutant, or contaminant under that act
and that the notification requirements of both laws would not apply to releases
of manure (H.R. 2997 and S. 1729). Proponents argue that Congress did not
intend that either of these laws apply to agriculture and that enforcement
and regulatory mechanisms under other laws are adequate to address
environmental releases from animal agriculture. Opponents respond that enacting
an exemption would severely hamper the ability of government and citizens
to know about and respond to releases of hazardous substances caused by an
animal agriculture operation.

Date of Report: July 20, 2012
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This
report surveys existing law for legal issues that have arisen, or may
arise in the future, on account of climate change and government responses
thereto.

At the threshold of many climate-change-related lawsuits are two barriers—whether
the plaintiff has standing to sue and whether the claim being made
presents a political question. Both barriers have forced courts to apply
amorphous standards in a new and complex context.

Efforts to mitigate climate change—that is, reduce greenhouse gas (GHG)
emissions—have spawned a host of legal issues. The Supreme Court resolved
a big one in 2007—the Clean Air Act (CAA), it said, does authorize EPA to
regulate GHG emissions. Quite recently, a host of issues raised by EPA’s
efforts to carry out that authority were resolved in the agency’s favor by the
D.C. Circuit. Another issue is whether EPA’s “endangerment finding” for
GHG emissions from new motor vehicles will compel EPA to move against GHG
emissions under other CAA authorities. Still other mitigation issues are
(1) the role of the Endangered Species Act in addressing climate change;
(2) how climate change must be considered under the National Environmental
Policy Act; (3) liability and other questions raised by carbon capture and
sequestration; (4) constitutional constraints on land use regulation and
state actions against climate change; and (5) whether the public trust
doctrine applies to the atmosphere.

Liability for harms allegedly caused by climate change has raised another crop
of legal issues. The Supreme Court decision that the CAA bars federal
judges from imposing their own limits on GHG emissions from power plants
has led observers to ask: Can plaintiffs alleging climate change harms
still seek monetary damages, and are state law claims still allowed? The one
ruling so far says no to both. Questions of insurance policy coverage are
also likely to be litigated. Finally, the applicability of international
law principles to climate change has yet to be resolved.

Water shortages thought to be induced by climate change likely will lead to
litigation over the nature of water rights. Shortages have already
prompted several lawsuits over whether cutbacks in water delivered from
federal projects effect Fifth Amendment takings or breaches of contract.

Sea level rise and extreme precipitation linked to climate change raise
questions as to (1) the effect of sea level rise on the beachfront owner’s
property line; (2) whether public beach access easements migrate with the
landward movement of beaches; (3) design and operation of federal levees;
and (4) government failure to take preventive measures against climate change
harms.

Other adaptation responses to climate change raising legal issues, often
property rights related, are beach armoring (seawalls, bulkheads, etc.),
beach renourishment, and “retreat” measures. Retreat measures seek to move
existing development away from areas likely to be affected by floods and
sea level rise, and to discourage new development there.

Natural disasters to which climate change contributes may prompt questions as
to whether response actions taken in an emergency are subject to relaxed
requirements and, similarly, as to the rebuilding of structures destroyed
by such disasters just as they were before.

Finally, immigration and refugee law appear not to cover persons forced to
relocate because of climate change impacts such as drought or sea level
rise.

Date of Report: July 27, 2012
Number of Pages: 34Order Number: R42613Price: $29.95

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Wednesday, August 1, 2012

This
report provides background on the emerging conflict over interpretation and
implementation of the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) and the Clean Water Act (CWA). For the more than 30 years since
they were enacted, there had been little apparent conflict between them.
But their relationship has recently been challenged in several arenas, including
the federal courts and regulatory proceedings of the Environmental Protection
Agency (EPA). In this report, a brief discussion of the two laws is
followed by a review of the major litigation of interest. EPA’s efforts to
clarify its policy in this area are discussed, including a regulation
issued in 2006 that was subsequently vacated by a federal court, as well as
possible options for EPA and Congress to address the issues further.

FIFRA governs the labeling, distribution, sale, and use of pesticides,
including insecticides and herbicides. Its objective is to protect human
health and the environment from unreasonable adverse effects of
pesticides. It establishes a nationally uniform labeling system requiring the registration
of all pesticides sold in the United States, and requiring users to comply with
the national label. The CWA creates a comprehensive regulatory scheme to
control the discharge of pollutants into the nation’s waters; the
discharge of pollutants without a permit violates the act.

Several federal court cases testing the relationship between FIFRA and the CWA
have drawn attention since 2001. In two cases concerning pesticide
applications by agriculture and natural resources managers, the U.S. Ninth
Circuit Court of Appeals held that CWA permits are required for at least
some discharges of FIFRA-regulated pesticides over, into, or near U.S. waters.
It held in a third case that no permit was required for the specific
pesticide in question. Most recently, the U.S. Second Circuit Court of
Appeals ruled in 2010 that a CWA discharge permit for mosquito control
activities is not required before April 2011.

Several of the rulings alarmed a range of stakeholders who fear that requiring
CWA permits for pesticide application activities would present significant
costs, operational difficulties, and delays. Pressed to clarify its
long-standing principle that CWA permits are not required for using FIFRA-approved
products, EPA in 2006 issued a rule to formalize that principle in regulations. Environmental
activists strongly opposed EPA’s actions, arguing that FIFRA does not protect water
quality from harmful pollutant discharges, as the CWA is intended to do. Other stakeholders,
such as pesticide applicators, endorsed the rule. The rule was challenged, and
in 2009 a federal court vacated the regulation. The federal government
asked the court to stay the order vacating the exemption for two years, to
provide time for working with states to develop a general permit for
pesticide applications covered by the decision. The court denied the request
for rehearing and granted the requested delay, which was extended until
October 31, 2011. On October 31, EPA issued the permit. Under the final
permit, pesticide applicators will be covered automatically for discharges
before January 12, 2012. However, despite the agency’s efforts to minimize
regulatory burdens and cost, the permit is controversial.

Some believe that the controversy will only be resolved by congressional action
to clarify the intersecting scope of the Clean Water Act and FIFRA. In the
112th Congress, the House has passed legislation intended to nullify the
2009 federal court ruling (H.R. 872), but no legislation was enacted
before EPA issued the pesticide general permit on October 31. The legislative language
of H.R. 872 was included as a provision of the 2012 farm bill (H.R. 6083)
approved by the House Agriculture Committee on July 11.

Date of Report: July 13, 2012
Number of Pages: 19Order Number: RL32884Price: $29.95

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